Lucidalia Chavez v. Walter Chavez ( 2015 )

ACCEPTED
14-14-00481-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
7/8/2015 11:14:13 AM
CHRISTOPHER PRINE
CLERK
No. 14-14-00481-CV
________________________________________________________________________
FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
IN THE FOURTEENTH COURT OF 7/8/2015 11:14:13 AM
APPEALS
CHRISTOPHER A. PRINE
HOUSTON, TEXAS Clerk
________________________________________________________________________
LUCIDALIA CHAVEZ,
Appellant,
V.
WALTER CHAVEZ
Appellee.
________________________________________________________________________
APPELLEE’S EMERGENCY VERIFIED MOTION TO ABATE AND
REMAND TO MAKE FINDINGS OF FACT AND CONLCUSIONS OF LAW
________________________________________________________________________
TO THE HONORABLE JUSTICES OF THE COURT:
Appellee files this Emergency Motion to Abate and Remand to Make
Findings of Fact and Conclusions of Law. In support of this motion,
Appellee shows the following:
I.
MOTION TO ABATE AND REMAND TO MAKE
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Appellee filed his first Motion to Abate and Remand on March 12,
2015 on the ground that, although timely requested, the trial court did not
file findings of facts and conclusions of law. (Exhibit A.) The Court
granted that motion on March 24, 2015 and ordered the trial court to “file
findings of fact and conclusions of law on or before April 13, 2015.”
(Exhibit B.) The Court further ordered that the trial court clerk file “findings
of fact and conclusions of law . . . in a supplemental clerk’s record to be
filed with [the Court of Appeals] on or before May 8, 2015.” Id.
The trial court did not file the findings on or before April 13, 2015 as
ordered. (See Supplemental Clerk’s Record filed on June 2, 2015). Nor did
the trial court clerk file a supplemental record on or before May 8, 2015.
(See File.) The trial court clerk did nonetheless file a supplemental record
on June 2, 2105. Id. However, that supplemental record does not contain
findings of fact and conclusions of law and therefore does not comply with
the Court’s order. Id.
In the meantime, on May 20, 2015, Appellant filed a Motion to
Reinstate (without stating any grounds). (Exhibit C.) The Court denied that
motion on the ground Appellee “had requested a status conference with the
2
trial court, to be held on July 2, 2015, for the purpose of determining why
the court has not filed the findings and conclusions, and whether more time
is required.” (Exhibit D.)
Regardless, and perhaps because the trial court clerk filed a
supplemental record on June 2, 2015, the Court reinstated this appeal sua
sponte on June 18, 2015 (prior to the time of the status conference).
As opposed to reasserting his motion to abate, Appellee planned on
discussing the matter with Appellant at the July 2, 2015 status conference,
after learning the reason for the delay in filing the findings. However, on
June 30, 2015, Appellant’s counsel notified Appellee she had an emergency
hearing in Brazoria County on July 2, 2015 at 9:00 a.m. and asked for a reset
of the status conference. (Exhibit E.) Appellee agreed to reset the status
conference to July 16, 2015 to accommodate counsel’ schedule. (Exhibit F.)
In addition, on July 6, 2015, the undersigned counsel received a call
from Mrs. Madeline Russell, Court Coordinator of the 309th District Court,
asking counsel to send an electronic courtesy copy of Appellee’s proposed
findings of fact and conclusions of law and informing him that Judge Dean
was working on the findings. Counsel complied with Mrs. Russell’s request.
For the sake of judicial efficiency and to put the Court and the parties
in the best position to achieve a prompt resolution to this matter (e.g.,
3
without the necessity of a mandamus proceeding, if possible), Appellee
respectfully MOVES that the Court again abate this appeal until one week
after the July 16, 2015 status conference and remand to the trial court to give
court an opportunity to remedy the situation.
II.
REQUEST FOR EMERGENCY CONSIDERATION
Because the Court reinstated this appeal on June 18, 2015 (even
though the clerk’s supplemental record did not comply with the Court’s
order) the deadlines for briefs arguably began running on that day. See Tex.
R. App. P. 38.6(a)(1). Therefore, Appellee respectfully requests that the
Court consider this Motion on an emergency basis.
If it is the Court’s opinion that the deadlines for briefs did not begin
running on Jun 18, 2015, this request is withdrawn.
WHEREFORE PREMISES CONSIDERED, Appellee, Walter
Chavez, PRAYS that the Court GRANT his Emergency Verified Motion to
Abate and Remand to Make Findings of Fact and Conclusions of Law.
Respectfully Submitted,
/s/ Robert A. Whitley
Robert A. Whitley
Bar No. 24056522
12621 Featherwood Dr.
Suite 282
4
Houston, Texas 77034
Email: robert@whitlegal.com
Phone: (281) 741-5225
Fax: (281) 741-9549
Attorney for Walter Chavez
5
CERTIFICATE OF CONFERENCE
I hereby certify that on July 7, 2015, I contacted the office of Patricia
Billings. Mrs. Billings was not available, but I explained to the Legal Assistant
that I was filing this motion and asked whether Mrs. Billings would oppose it. The
Legal Assistant told me she would ask Mrs. Billings and get back to me. As of the
filing of this Motion, I have not heard back from Mrs. Billings or her Legal
assistant.
/s/ Robert A. Whitley
Robert A. Whitley
CERTIFICATE OF SERVICE
I hereby certify that on July 8, 2015 a true and correct copy of the
foregoing Motion to Abate was served on the persons below by the method
indicated.
/s/ Robert A. Whitley
Robert A. Whitley
Patricia Garcia Billings
107 W. First St., Suite 201
Humble, Texas 77338
Tel. (281)540-1529
Fax. (281)540-1535
Counsel for Appellant
Via E-mail and Facsimile
6
VERIFICATION
STATE OF TEXAS $
$
COUNTY OF HARRIS $
BEFORE ME, the undersigned authority, personally appeared Robert A. Whitley, who
stated, upon oath, that the statements made in the foregoing instrument are within his personal
knowledge and are true and correct.
Ro rt A. Whitley
suBScRrFqD AND swoRN ro BEFORE ME "n tlulg 6, zOts , uv
?oh,"t I hlhrt\fn.
ASHTON EIIZAEEIH WHITTEY
Notory Public, Stote of lexos
My Commission Expires Notary Public, State of Te
Moy 22, Z0lg
No. 14-14-00481-CV
________________________________________________________________________
IN THE FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
________________________________________________________________________
LUCIDALIA CHAVEZ,
Appellant,
V.
WALTER CHAVEZ
Appellee.
________________________________________________________________________
APPELLEE’S OPPOSED MOTION TO ABATE AND REMAND TO MAKE
FINDINGS OF FACT AND CONLCUSIONS OF LAW AND ALTERNATIVE
REQUEST FOR EXTENSION OF TIME TO FILE BRIEF ON THE MERITS
________________________________________________________________________
TO THE HONORABLE JUSTICES OF THE COURT:
Appellee files this Opposed Motion to Abate and Remand to Make
Findings of Fact and Conclusions of Law and Alternative Motion for
Extension of Time to File Brief on the Merits. In support of this motion,
Appellee shows the following:
Ex. A
II.
MOTION TO REMAND TO MAKE
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Appellant (Petitioner below) timely filed a Request for Findings of
Fact and Conclusions of Law and subsequently filed a timely Notice of Past
Due Findings of Fact and Conclusions of Law. (CR 186-87, 191-92.) The
trial court did not file the findings of fact and conclusions of law.
If the trial court does not file findings of fact and conclusions of law,
it is presumed harmful error unless the record affirmatively shows the
appellant suffered no harm. Tenery v. Tenery , 932 S.W.2d 29, 30 (Tex.
1996.) In a complicated case with disputes facts, the inference or harm
cannot be overcome. Randall v. Jennings, 788 S.W.2d 981, 932 (Tex.
App.—Houston [14th Dist.] 1990, no writ). This case is complicated and
many of the facts bearing on the controlling issues are in dispute. See, e.g.,
Appellant’s Brief: Issues Presented Nos. 1 and 2 (arguing the trial court
abused its discretion in naming Appellee as the conservator with the right to
designate the children’s primary residence and in purportedly awarding
100% of the net community estate to Appellee).
Generally, a court of appeals must not rule on an appeal when the trial
court’s failure to act prevents the proper presentation of a case to the court of
appeals and the trial court can correct its action. Tex. R. App. P. 44.4(a).
2
Ex. A
When this circumstance is present, the court of appeals must direct the trial
court to correct the error. Id., 44.4(b). Under the circumstances presented
here, a court of appeals should abate the appeal and remand the case to the
trial court and direct the trial court make the findings of fact and conclusions
of law. See Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 773 (Tex.
1989).
Here a record of the trial was made and filed with the Court of
Appeals on October 10, 2014. See Court File. Therefore, the error is
curable because the trial court has a record from which to render findings of
fact and conclusions of law. 1
Moreover, even though she opposes this motion, Appellant argues in
her brief that abating the appeal and remanding the case to the trial court for
findings of fact and conclusions of law is the appropriate remedy.
(Appellant’s Brief, P. 24-25.) It is unclear why Appellant has now changed
her position.
Appellee respectfully MOVES that the Court of Appeals abate this
appeal, remand the case to the trial court, and direct the trial court to make
and file findings of fact and conclusions of law within thirty (30) days of the
order thereon.
1
In addition, Appellee will file with the trial court the attached Proposed Findings of Fact and Conclusions
of Law (subject to any modifications Appellee deems necessary before actually filing) within three days of
the Court granting this motion. (Exhibit A.)
3
Ex. A
II.
ALTERNATIVE MOTION
FOR EXTENTION OF TIME TO FILE BREIF
Appellee’s Brief on the Merits is due on April 1, 2015. See Court
File. While Appellee believes his motion to abate and remand the case to
the trial court for findings of fact and conclusions of law should be granted,
in the event the Court does not grant the motion, Appellee will need
additional time for his brief because the Court’s ruling will bear on which
issues Appellee will address and how he will address them.
Therefore, in the even the Court denies Appellee’s Motion to Abate
and Remand to the Trial Court for Findings of Fact and Conclusions of Law,
and in the alternative, Appellee MOVES for a thirty (30) day extension of
time for which to file his brief.
WHEREFORE PREMISES CONSIDERED, Appellee, Walter
Chavez, PRAYS that the Court GRANT his Motion to Abate and Remand to
Make Findings of Fact and Conclusions of Law or, in the alternative
GRANT his Motion for Extension of Time to File Brief on the Merits of
thirty (30) days.
Respectfully Submitted,
/s/ Robert A. Whitley
Robert A. Whitley
4
Ex. A
Bar No. 24056522
12621 Featherwood Dr.
Suite 282
Houston, Texas 77034
Email: robert@whitlegal.com
Phone: (281) 741-5225
Fax: (281) 741-9549
Attorney for Walter Chavez
5
Ex. A
CERTIFICATE OF CONFERENCE
I hereby certify that on or about March 12, 2015, Appellant’s Counsel
Patricia Garcia Billings indicated in an e-mail that she opposes this motion.
/s/ Robert A. Whitley
Robert A. Whitley
CERTIFICATE OF SERVICE
I hereby certify that on March 18, 2015 a true and correct copy of the
foregoing Motion for Extension of Time was served on the persons below by
the method indicated.
/s/ Robert A. Whitley
Robert A. Whitley
Patricia Garcia Billings
107 W. First St., Suite 201
Humble, Texas 77338
Tel. (281)540-1529
Fax. (281)540-1535
Counsel for Appellant
Via Facsimile
6
Ex. A
Motion Granted; Order filed March 24, 2015.
In The
Fourteenth Court of Appeals
____________
NO. 14-14-00481-CV
____________
LUCIDALIA CHAVEZ, Appellant
V.
WALTER CHAVEZ, Appellee
On Appeal from the 309th District Court
Harris County, Texas
Trial Court Cause No. 2012-60726
ABATEMENT ORDER
After a non-jury trial, appellant Lucidalia Chavez brings this appeal from a
final decree of divorce signed March 17, 2014. Appellant timely requested findings
of fact and conclusions of law and timely reminded the trial court when the
findings and conclusions were overdue. Our record does not contain the requested
findings and conclusions.
On January 29, 2015, appellant filed a brief complaining of the trial court’s
failure to make and file findings of fact and conclusions of law. On March 18,
Ex. B
2015, appellee filed a motion to abate the appeal so that the trial court may make
and file findings of fact and conclusions of law. Appellee avers in the motion that
he cannot properly respond to appellant’s issues without the findings and
conclusions. Because the trial judge continues to serve on the district court, the
error in this case is remediable. See Tex. R. App. P. 44.4.
We GRANT appellee’s motion, ABATE the appeal, and ORDER the trial
court to file findings of fact and conclusions of law on or before April 13, 2015.
Within ten days after the trial court has filed findings of fact and conclusions of
law, any party may file a request for specified additional or amended findings or
conclusions. The trial court shall file any additional or amended findings that are
appropriate within ten days after such a request is filed. The trial court’s findings
of fact and conclusions of law, and any additional and amended findings or
conclusions, shall be included in a supplemental clerk’s record to be filed with this
court on or before May 8, 2015.
The appeal is abated, treated as a closed case, and removed from this court’s
active docket. The appeal will be reinstated on this court’s active docket when the
supplemental record ordered herein is filed in this court. The court will also
consider an appropriate motion to reinstate the appeal filed by either party, or the
court may reinstate the appeal on its own motion. Appellant’s brief shall be due
thirty days after the appeal is reinstated.
PER CURIAM
Ex. B
CAUSE NUMBER 14-14-000481-CV
IN THE FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
LUCIDALIA CHAVEZ,
Appellant,
v.
WALTER CHAVEZ,
Appellees.
MOTION TO REINSTATE APPEAL
PATRICIA GARCIA BILLINGS
107 W. FIRST ST., SUITE 201
HUMBLE, TEXAS 77338
TEL: (281) 540-1529
FAX: (281) 540-1535
Ex. C
TO THE HONORABLE FOURTEENTH COURT OF APPEALS:
This Motion to Reinstate Appeal is brought by LUCIDALIA CHAVEZ, Petitioner,
through undersigned counsel, who shows in support:
I. This Honorable Court granted Appellee's Motion to Abate and requested the trial
court file Findings of Fact and Conclusions of Law by April 13, 2015.
2. Further, the supplemental record was due by May 8, 2015 to include Findings of
Fact and Conclusions of Law and any additional and amended findings and
conclusions.
LUCIDALIA CHAVEZ requests that this Court enter its order reinstating LUCIDALIA
CHAVEZ's appeal.
Respectfully submitted
The Law Office of Patricia Billings
107 W. First St. Suite 201
Humble, Texas 77338
Tel: (281) 540-1529
Fax: (281) 540-1535
'---- ,..1cia Garcia Billings
State Bar No. 24071984
patricia@lawyerbillings.com
Attorney for LUCIDALIA CHAVEZ
Ex. C
Affidavit
Patricia Garcia Billings, attorney for LUCIDALIA CHAVEZ, appeared in person before
me today and stated under oath that she is above the age of eighteen years and is fully competent
to make this affidavit; that she is the attorney for LUCIDALIA CHAVEZ in this case and, as
such, has authority to make this affidavit; that she has read the above Motion to Reinstate
Appeal; and that every statement contained in it is within her personal knowledge and is true and
correct.
'------_..,'"'111ant
SIGNED under oath before me on _....';-M
-'-,-::..,,t:....,:;;,,,_,,.,._. ...:'------'--,=Y- _
Anthony Gallegos
Notary Public, State of Texas
My Convnlsson Expires
Norary'9," #r
April 4, 2019
Certificate of Service
I certify that a true copy of the above was served on each attorney of record or party in
accordance with the Texas Rules of Civil Procedure on May 20, 2015.
Pa · ia Garcia Billings
'------A
-:'.ttorney for LUCIDALIA CHAVEZ
Ex. C
Motion Denied; Continuing Abatement Order filed June 2, 2015
In The
Fourteenth Court of Appeals
____________
NO. 14-14-00481-CV
____________
LUCIDALIA CHAVEZ, Appellant
V.
WALTER CHAVEZ, Appellee
On Appeal from the 309th District Court
Harris County, Texas
Trial Court Cause No. 2012-60726
CONTINUING ABATEMENT ORDER
After a non-jury trial, appellant Lucidalia Chavez brings this appeal from a
final decree of divorce signed March 17, 2014. Appellant timely requested findings
of fact and conclusions of law and timely reminded the trial court when the
findings and conclusions were overdue. Our record does not contain the requested
findings and conclusions.
On January 29, 2015, appellant filed a brief complaining of the trial court’s
failure to make and file findings of fact and conclusions of law. On March 18,
Ex. D
2015, appellee filed a motion to abate the appeal so that the trial court could make
and file findings of fact and conclusions of law. Appellee avers in the motion that
he cannot properly respond to appellant’s issues without the findings and
conclusions. Because the trial judge continues to serve on the district court, the
error in this case is remediable. See Tex. R. App. P. 44.4.
On March 24, 2015, this court granted appellee’s motion, abated the appeal,
and ordered the trial court to file findings of fact and conclusions of law on or
before April 13, 2015. This court’s order also permitted any party to file a request
for specified additional or amended findings or conclusions within ten days of the
filing of the trial court’s findings of fact and conclusions of law. The trial court
was ordered to file any additional or amended findings that are appropriate within
ten days after such a request is filed. The trial court’s findings of fact and
conclusions of law, and any additional and amended findings or conclusions, were
ordered to be included in a supplemental clerk’s record to be filed with this court
on or before May 8, 2015.
On May 20, 2015, appellant filed a motion to reinstate the case because the
findings of fact and conclusions of law had not been filed. Appellee filed a
response in which he opposed appellant’s motion, and notified this court that he
had requested a status conference with the trial court, to be held on July 2, 2015,
for the purpose of determining why the court has not filed the findings and
conclusions, and whether more time is required.
We deny appellant’s motion to reinstate the appeal. The parties shall notify
this court of the status of the findings of fact and conclusions of law within one
week of the status conference with the trial court.
The appeal will be reinstated on this court’s active docket when the
Ex. D
supplemental record ordered herein is filed in this court. The court will also
consider an appropriate motion to reinstate the appeal filed by either party, or the
court may reinstate the appeal on its own motion. Appellant’s supplemental brief
shall be due thirty days after the appeal is reinstated.
PER CURIAM
Ex. D
3E-JUN-?815 tE : E4 Fr^ om : PRTRICIR BILLIT{GS a8154A1535 To: e8174L9549 Fasezl"rL
FAX THE LAW OFFtcE oF
ParnrctA GaHcrA B rLLtNGs, pLLc
L07 W. First Street, Suite 201 Hurnbte Texas .77338
Phone; (2BL) 540 15Zg Fax: (ZB 1) 540 153 5
patric ia@tawyerb i [[i n gs,com
To; Robert Whitley From: Patricia Billings
Fax: (281) 74L-9549 Re: Cause l4-74-ooo487-cv; L- chavez vs. w.
chavez; rn the l4th Court of Appeals Houston,
Texas,
Pages: 1_ including cover sheet
Date: June 30, 2015
ursent t ] Please Reply
tX] For Revi€w
t I
Dear Mr. Whitley:
Tha.nk vou_tor your response to our facsimile regarding the status conference set for July z, 2015
in the 309rH. Please be advised that Mrs. Billingi rras in emergency temporary orders neaiirrg
previously scheduled for July 2, 2015 at 9:00 a.m., in BrazoriJCounty tlrat
mornilg.
our office will be notifying the court of the status of Mrs. Billings that morning. We apotogize for
the inconvenience.
Thank you for your tirne and attention in this matter.
Sincerely,
ez
Ito Patricia G. tsilf in
This fa;< fansmission and/or the documents accompanying it
may contain confidential
information belonging to the sender. lf you are not tnb inrenieo recipient, you
are hereby
notified that any disclosure, copying, distriuution or the taking
of any action in retiance on
lhe contents of this intormaiibn-is strictry prohibited. "rf-you have received this
transmis-sion in error,.please notify this offi6e'immediately by
ielephone to arrange for
return of the documents,
Ex. E
06/30/ 2015 11:05 P.001
:$ * * * * * * * * * * * * * {c * * * * * * * {r {c * {r **** {< * * * {r * * *
* *:* RX REPORT {r *:$
* .* * {c :tc il( *********** {c {< ********* {< **** {c * {c **
JOB NO. MODE NO. DESTI NATI ON TEL/ I D START TIME PAGE RESTILT
3840 RX ECM 001 06130 11:04 001 0K 00'26
28L5401535
Ex. E
From:                                         Robert Whitley
Sent:                                           Wednesday, July 01, 2015 11:18 AM
To:                                               'Paralegal'
Cc:                                               'Patricia Billings'; admin@lawyerbillings.com
Subject:                                     RE: Cause No: 14-14-000481-CV; L. Chavez vs. W. Chavez; Status Conference moved to 7/16/15
Thanks and confirmed for July 16, 2015 a 9:00 a.m.
Robert A. Whitley
Blasingame Whitley, Attorneys at Law
12621 Featherwood Dr.
Suite 282
Houston, TX  77034
(281) 741-5225
(281) 741-9549 fax
CONFIDENTIALITY NOTICE: This E-mail (including attachments) is covered by the Electronic Communications Act, 18 U.S.C.
2210-2521, is confidential and may be legally privileged. This E-mail contains information that is private, confidential, or is
protected by the attorney-client work product doctrines, and is intended only for the use of the individual(s) named herein. If
you are not the intended recipient, be advised that unauthorized use, disclosure, copying, distribution, or the taking of any
action in reliance on this information is strictly prohibited. If you have received this E-mail in error, please immediately notify
the sender by replying to this E-mail, and delete the original message and any attachments. Thank you.
From: Paralegal [mailto:paralegal@lawyerbillings.com]
Sent: Wednesday, July 01, 2015 11:35 AM
To: robert@whitlegal.com
Cc: Patricia Billings; admin@lawyerbillings.com
Subject: Cause No: 14-14-000481-CV; L. Chavez vs. W. Chavez; Status Conference moved to 7/16/15
Dear Mr. Whitley:
I spoke with Sandy in the 309TH and the status conference set for tomorrow morning has been moved to July 16, 2015 at 9:00
a.m.
Additionally, Judge Dean was not going to be present tomorrow morning, so the status conference has not be moved anyway.
Thank you for your attention and consideration in this matter.
Best Regards,
Ana Jimenez
Paralegal
The Law Offices of Patricia G. Billings
107 West 1st Street, Suite 201
Humble, Texas 77338
Tel: 281-540-1529
Fax: 281-540-1535
Ex. F
This communication is confidential and may be protected by the attorney-client, work product and/or other privileges. Any improper
use or dissemination of this e-mail without the consent of the originator is strictly prohibited. If you are not the above named
recipient and you have received this e-mail in error, you should not review the text of this message or otherwise disseminate,
distribute or copy this e-mail. Please immediately notify us of the error via a reply to this e-mail and then permanently delete this
message from your system. Although this e-mail is believed to be free of any virus or other defect, it is the responsibility of the
recipient to ensure that it is virus-free, and no responsibility is accepted by the sender or The Law Office of Patricia G. Billings for
any damage arising from its use.
Ex. F